Free Speech

San Diego Has Been Ticketing People for "Seditious Language"

|The Volokh Conspiracy |

So reports Voice of San Diego (Kate Nucci):

San Diego Police Chief Dave Nisleit has instructed officers to stop enforcing a century-old law that forbids "seditious language" as elected officials begin the process of repealing it.

Earlier this month, VOSD reported that police since 2013 had issued at least 82 tickets for what's generally understood as speech advocating to overthrow the government….

Because the tickets were filed in recent years as infractions rather than misdemeanors, the process has played out administratively, not criminally. On par with speeding tickets, infractions don't entitle defendants to legal counsel or a trial by jury. Lawyers for both the city and the public defender said they were unaware that SDPD was still enforcing that section of the municipal code.

I certainly had never heard of this recent practice in San Diego, or anywhere else; the ordinance was enacted in 1918, and reads,

[It is] unlawful for any person … to utter or use within the hearing of one or more persons any seditious language, words or epithets, or to address to another, or to utter in the presence of another, any words, language or expression or seditious remarks, having a tendency to create a breach of the public peace.

At the time, "sedition" was understood to mean "the stirring up of disorder in the State, tending toward treason, but lacking an overt act." But under modern First Amendment law, such a prohibition is clearly unconstitutional. (The article doesn't make clear just what speech has led to the tickets, and thus how the police officers who were giving the tickets were actually interpreting "seditious.")

There are of course some narrow exceptions to the First Amendment: Advocacy intended to and likely to persuade people to commit imminent crimes (revolutionary, treasonous, or otherwise) is punishable as "incitement"; face-to-face personal insults that tend to lead to a fight are punishable "fighting words"; and there are similar exceptions for solicitation of specific crimes, true threats of crimes, and the like. But a broad prohibition on "seditious language" goes way beyond that. And even if the "seditious remarks, having a tendency to create a breach of the public peace" clause were read as applying only to fighting words, it would still be unconstitutionally viewpoint-based in its limitation to "seditious" fighting words.

Thanks to Prof. Eric M. Freedman for the pointer.

NEXT: Lawsuit Against Pro-Palestinian / Anti-Semitic Protesters Outside Synagogue Thrown Out

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  1. “But under modern First Amendment law, such a prohibition is clearly unconstitutional.”

    Darn liberal hippies and their “living” First Amendment.

    1. Free speech doctrine is definitely an indictment of originalism. A Congress containing numerous framers of the Constitution passed the Sedition Act. As best we can tell, the original understanding of the First Amendment was really about what we now call prior restraints- licensing of speakers. (You can get around this by attributing only the motives of Madison, but then you have the problem that those other people in the room may not have agreed with Madison, and the American public may not have understood Madison to be correct.)

      Our modern, speech protective culture is very much a product of a living First Amendment.

      1. I think you are right, in as much as there was no one original understanding of the First Amendment, or indeed much of the constitution. Some framers stated and wrote that the Sedition act was unconstitutional, and some voted for and supported it. Could it be that there was disagreement right from the start? What a kick in the pants to originalism that would be!

        1. On the other hand, that constitutional design was by people who fully knew politicians are happy to pass laws crushing rights, so if their contemporaries attempted it, not unexpected.

      2. “an indictment of originalism”

        What do you mean? Originalists had nothing to do with creation of current doctrine.

        1. Yeah, that’s the whole point.

          1. Still not getting the point.

          2. Except the language is absolutist. It does not admit of any exceptions nor does it authorize the courts to carve out exceptions or concoct goofy balancing tests.

            1. You make the same mistake too many unwoke people make. Yes, Congress shall make no law abridging “freedom of speech”, and “the right to keep and bear arms” shall not be infringed.

              But “freedom of speech” has always excluded libel and slander, fighting words, defamation, military secrets, and so on. The “right to keep and bear arms” has never included scaring people in public, carrying enough ammo to kill an entire kindergarten class, or being able to fire more than once or twice a minute.

              Don’t you see? It’s all so clear once you get woke.

      3. “Free speech doctrine is definitely an indictment of originalism.” You don’t understand originalism. The point of originalism is that not everything that you think is good and right can be found in the constitution. If it isn’t there, pass an amendment to put it there or pass legislation aimed at the problem. Don’t say this is how things should be and therefore this, whatever it is, I find in the constitution.

        1. I understand that is what originalists say. But terrible results are evidence of a bad jurisprudential theory.

          1. And writing opinions to get the result you want, as opposed to the result that is consonant with the law, is proof, not just evidence, of bad judging.

            1. I am going to push back hard.

              I agree that someone who thinks that the Constitution mandates everything they want and never mandates anything that they don’t want is a hack. That’s very true.

              BUT:

              1. Saying that is not the same thing as the sort of perverse pride that Scalia took in Herrera v. Collins, where he says “see how principled I am? I’m willing to interpret the Constitution to mandate an absolutely horrible result”. That’s not something to be proud of. It’s something that sometimes happens, but if it happens all the time, that tends to indicate your judicial philosophy is wrong.

              And that last point is key. The reason we choose judicial philosophies is not because there’s some written in stone way to interpret legal tests. It’s because they like the results. Scalia became an originalist because it produced results that he liked as an extremist, bigoted religious conservative. It’s not the other way around. And yes, a lot of liberals choose judicial philosophies that allow them to justify expansive readings of rights they care about.

              So while you shouldn’t be deciding cases based on results, a philosophy that leads to a lot of really bad results is a bad theory. And originalism is a bad theory with respect to the First Amendment.

              2. Its worth remembering that a lot of self-proclaimed originalists are very result oriented. There was nothing originalist about Bush v. Gore. There was nothing originalist about Shelby County. There’s nothing originalist about interpreting the 14th Amendment to prohibit affirmative action programs for Blacks.

              There’s nothing intrinsic to originalism that prevents bad judging. An intellectually dishonest person who adopts originalism is going to remain intellectually dishonest, and an intellectually honest person isn’t going to be dragged into dishonesty just because she rejects originalism.

              1. I respectfully suggest that you are still wrong. Picking a judicial philosophy because it gets you the results you like is not picking a judicial philosophy; it is the opposite. Second, if sometimes jurists engage in bad originalism that doesn’t mean that originalism is bad. It just means there are some bad originalists. As far as Scalia is concerned, you can read his mind? I can’t. I only know what he said consistently throughout his life. That was that originalism is the best way to read the constitution regardless of the results and that if one didn’t like the results, the constitution had a remedy for that: amend the constitution or get legislation passed. We should not live in a country that is governed by nine philosopher-kings who use the constitution to create the country that they think is best. Of course there in nothing intrinsic in originalism that prevents bad judging. There is nothing anywhere in existence that stops people from making mistakes. Even in math, a bad mathematician, or, more likely, a woke mathematician, can add up two and two and get five. By the way, you and I probably disagree on what constitutes a bad result.

      4. The problem with original understanding is it dissolves when immersed in the sea of absolutist text.

      5. “A Congress containing numerous framers of the Constitution passed the Sedition Act.”

        But the 1A was passed by the 1st Congress, which shared very few members with the Congress that passed the Sedition Act. And plenty of people argued at the time that the Sedition Act violated the first amendment. Its passage contributed to the election of Thomas Jefferson, who pardoned everybody convicted under it, and the party that passed it never held power again.

        1. None of which has much to do with originalism.

          1. The contemporary public understanding of the meaning of the first amendment doesn’t have “much to do with originalism.”

            1. I’m not an originalist, so I don’t care.

              But neither of the two main types of originalist theories should care that there were dissenters who rejected the Sedition Act and eventually prevailed in the political sphere.

        2. Ummm — something worth reading before you consider Jefferson innocent: https://www.courant.com/news/connecticut/hc-xpm-1998-01-07-9801070671-story.html

  2. So a cop writes me a ticket for seditious language. How do I fight it I’d there’s no trial? I don’t pay. Then what happens? What events have to occur for this to be heard in a normal courtroom? (And how has this NOT already happened?)

    1. They issue a bench warrant for your arrest and then when a cop runs a warrant check you get arrested. Sucks to be you.

      1. They may also suspend your drivers’ license. Depends on the offense, the state, and possibly the state of the moon.

      2. The process is the punishment.

    2. On a more serious note, and I am talking Massachusetts here and parking tickets (speeding are still criminal) — you can request a hearing in front of a bureaucrat in city hall who is only in on Tuesday mornings when the tide is high at noon. And it will be denied.

      And then you can file a civil suit against the Commonwealth — it’s a $100 filing fee which you won’t get back even if you prevail, and the fine is usually less than $100 so you are better off paying it.

      Even if it is in a place you never went to — that happens.

      And if you don’t, you can’t renew your license or registration until you do.

  3. California comrades just keeping the thinking populace in line. Don’t need anyone thinking for themselves in the Orwellian utopia of the land of fruits and nuts.

    1. You think this is a liberal thing?

      I’ve got bad news for you about which side wants to criminalize sedition.

      1. Yeah, but which side is administering street justice against those who dare question the Antifa line?

        1. Irrelevant and false.

          Lame attempt at whattaboutism all around.

          1. Damn, bud, you started the whataboutism just a couple of comments before:

            Yeah, but which side is administering street justice against those who dare question the Antifa line?

            1. Explain the whattaboutism I employed.

              1. If you didn’t see it when you wrote it, and didn’t see it when I quoted it, the third time is not the charm.

                1. But… Sarcastr0 didn’t write the thing you quoted?

                2. What you quoted wasn’t something I wrote.

        2. Are you referring to the men and women I law enforcement who were issuing tickets in accordance with the law?

          Why do you hate the police? And why do you hate law and order?

          SAD!

      2. Sarcast0, you do know that opposing the medical fascists is considered sedition, don’t you?

        Heck, proposing HCQ probably constitutes sedition as well…

        1. Are people getting arrested for that, Ed? No; you’re free to spout your nonsense all you want.

      3. Might also help to bone up on which party currently holds the Mayoralty of San Diego.

        1. It’s also the cops wrote this instead of arresting the perp for a more serious offense. Keeping the merchants happy and such.

        2. Mixing up Dems and liberals. And police and the mayor.

      4. “I’ve got bad news for you about which side wants to criminalize sedition.”

        “Hate speech laws” are the modern “sedition”.

        1. Hate speech laws are unconstitutional and bad, and increasingly less common.

          And we’re talking about sedition.

          Y’all abuse sedition as much as you abuse treason.

          https://twitter.com/Popehat/status/1078811563702865920

  4. I’m starting to worry that America may not be so free as it thinks.

    Maybe Les Nessman was right all along when he said, ‘Are we really free?’ and asked, ‘Why are Armenians eating lasagne?’

  5. <I?"Because the tickets were filed in recent years as infractions rather than misdemeanors, the process has played out administratively, not criminally. On par with speeding tickets, infractions don't entitle defendants to legal counsel or a trial by jury."

    This is what people don’t realize about “decriminalizing” offenses — it winds up becoming a wholesale violation of innocent poor people.

    1. Good point.

  6. Prof Volokh — back in the early 1980s (or possibly late ’70s) there was a Massachusetts case where a police officer arrested two individuals for “fornication.” In a van and in front of children, which is why he did it – both were married, but not to each other.

    It went to the SJC and they upheld it on the grounds that just because a law hasn’t been enforced recently doesn’t mean that it can’t be. I don’t have Lexis anymore so I can’t find it.

      1. Perhaps you’re new around here. Dr. Ed is the master of making up completely unverifiable anecdotes.

  7. The statute addresses “seditious language, words or epithets.” Based on the news story to which Prof. Volkoh linked, which shows a copy of a ticket issued for “profanity,” I doubt law enforcement officers in San Diego are concerned about “seditious … epithets.” They seem to be treating the statute as generally banning any “epithet,” and defining the term broadly to mean any abusive or obscene terms. In other words, the statute has been repurposed to ban public swearing. There still may be First Amendment violations. But we don’t need to worry about thought police running amok in San Diego ticketing “treasonous” speech.

  8. It would be fascinating to hear what some of the actual seditious language was, and what the circumstances were. I’m trying to imagine what this actually looked like. One of the usual cranks is speechifying in the park and gets ticketed for saying ‘The mayor is a lying weasel’???

    1. I’d more ask “where” and who the complaining party was. I would not be surprised if this is a way to deal with disruptive (often mentally ill) persons who are not welcome in various business establishments, or adjacent thereto.

      Just a hunch.

  9. Research might indicate that the citations deriving from that ordinance were unrelated to anything association with sedition or seditious language. Instead, the charges seem most likely to have relied on the portion of the ordinance addressing “any words, language or expression . . . having a tendency to create a breach of the public peace.”

  10. Is it true that it is still illegal in San Diego to put squirrels in your pants for purposes of gambling?

  11. “Lawyers for both the city and the public defender said they were unaware that SDPD was still enforcing that section of the municipal code.”

    Isn’t the fact that governments don’t clean up their laws a bigger deal? That’s what leads to selective prosecution (Logan Act is another example).

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